USCIS New Policy: Time spent in H-4 and L-2 does NOT count against H-1B and L-1 Time Limit

The USCIS has announced that after completing a policy review that it was clarifying that “any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens.”  Likewise, the USCIS also announced that “time an alien has spent time in L-2 dependent status will not count against the time available to the alien in L-1A or L-1B status.”  The new policy was announced in a USCIS Interoffice Memorandum from Michael Aytes, Associate Director, Domestic Operations, to all Regional Directors and Service Center Directors, dated December 5, 2006.   The USCIS Memorandum stated:

A. Decoupling H-4 and L-2 Time from H-1B and L-1 Time

USCIS reviewed the current INA provisions governing the H classifications as well as its governing regulations and policy guidance. Neither the statute nor regulations addresses whether time spent in H-4 status counts against the six-year maximum period of admission available to an alien seeking H-1B status. Further, USCIS has not issued any recent policy guidance that clarifies the issue.

USCIS, therefore, is now clarifying that any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens. Thus, an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay applicable to the classification.

USCIS finds this approach most consistent with the statutory framework, which allows eligible aliens to obtain a full six-year admission period as an H-1B alien. Further, from a policy perspective, this interpretation promotes family unity by affording each qualified spouse the opportunity to spend six-years in H-1B status while allowing the other spouse to remain as an H-4 dependent and without undermining the Congressional intent to limit a principal alien's ability to work in a specialty occupation for six-year maximum period. For example, a husband and wife who come to the United States as a principal H-1B and dependent H-4 spouse may maintain status for six years, and then change status to H-4 and H-1B respectively. Note that, upon the switch, the new “principal alien” would be subject to the H-1B cap if not independently exempt. USCIS will consider, in the context of any applications for change of status from H-4 to H-1B, whether the H-4 alien complied with the requirements of accompanying or joining the H-1B alien, and whether the alien otherwise maintained valid nonimmigrant status.

Also, in light of the similar statutory provision set forth in INA 214(d) applicable to L-1 and L-2 aliens, this memorandum provides that time an alien has spent time in L-2 dependent status will not count against the time available to the alien in L-1A or L-1B status.

The USCIS Memorandum warned however:

USCIS may limit, deny or revoke on notice any stay for an H-4 or L-2 dependent that is not primarily intended for the purpose of being with the principal worker in the United States. A spouse or child may be required to show that his or her requested stay is not intended to evade the normal requirements for nonimmigrant classification that otherwise would apply when the principal alien is absent from the United States. This policy is meant to prevent an H-1B or L-1 alien from using only occasional work visits to the United States to "park" dependent family members in the United States for extended periods of time while the principal is normally absent. Note, an H-1B or L-1 worker who appropriately brings his or her family to the United States may from time to time be stationed temporarily outside the United States while leaving the family in the United States for purposes of continuity in schooling or similar arrangements.